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TMI Blog2019 (12) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... rom business necessarily, the provisions of section 43CA would have application and the value of asset for the purpose of stamp duty valuation under the State Government laws would deemed to be the consideration received on account of transfer of such business asset. AO had failed to take note of the provisions of section 43CA and the impact of such section in the instant case. As mentioned earlier, the assessee has already filed an appeal as against the assessment order holding the transfer of land would be assessable as income from long term capital asset. In context of the appeal filed by the assessee, the application of section 43CA assumes significance. AO having failed to take notice of section 43CA while framing the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, the twin conditions of the order being erroneous and prejudicial to the interest of revenue does not stand satisfied in this case. 4. The learned Principal Commissioner of Income Tax ought to have appreciate that the order is incapable of being revised, as it is a subject matter of appeal before the Commissioner of Income Tax (Appeals). 5. The learned Principal Commissioner of Income Tax ought to have noted that the Assessing Officer having taken a position that the income is assessable a capital gains, the question of invoking Section 43CA does not arise. Appellant prays that the order u/s 263 may be struck down as bad in law. 3. Brief facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The gist of the objection is that the Assessing Officer had took a conscious decision that income arising out of transfer of sale of land is not a business income but income from transfer of capital asset, and therefore, liable for capital gain tax. According to the assessee, the Assessing Officer has taken a possible view and issuance of notice u/s 263 of the I.T.Act is bad in law. The assessee relied on the judgments of the of the Hon ble Apex Court in the case of (i) Max India Ltd. 295 ITR 282, (ii) Anal Housing Construction Ltd. 51 taxmann.com 376, and (iii) Malabar Industrial Company Ltd.109 taxmann.com 66. 5. The objections raised by the assessee was rejected by the CIT. The CIT after reproducing the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the finding of the CIT. 9. We have heard the rival submissions and perused the material on record. The assessee had filed the return of income for assessment year 2014-2015 showing sale of property under the head `business income . The Assessing Officer, while completing the assessment u/s 143(3) of the I.T. Act, held such disclosure by the assessee as sale of property under the head `business income was to avoid the provisions of section 50C of the I.T.Act, which is applicable on transfer of long term capital asset. Accordingly, the Assessing Officer treated the sale of property as transfer of capital asset and calculated the long term capital gain. The Assessing Officer invoked the provisions of section 50C of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... capital asset). Therefore, if the transfer of asset is to be assessed under the head `income from business necessarily, the provisions of section 43CA of the I.T.Act would have application and the value of asset for the purpose of stamp duty valuation under the State Government laws would deemed to be the consideration received on account of transfer of such business asset. 9.2 The Assessing Officer had failed to take note of the provisions of section 43CA of the I.T.Act and the impact of such section in the instant case. As mentioned earlier, the assessee has already filed an appeal as against the assessment order holding the transfer of land would be assessable as income from long term capital asset. In context of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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